Torture as a Management Practice: The Convention against Torture and Non-Disciplinary Solitary Confinement

By Fuller, Samuel | Chicago Journal of International Law, Summer 2018 | Go to article overview

Torture as a Management Practice: The Convention against Torture and Non-Disciplinary Solitary Confinement


Fuller, Samuel, Chicago Journal of International Law


Table of Contents

I. Introduction......................................104

II. Solitary Confinement and the CAT's Legal Regime...............106

A. The. Institutions of the CAT............................107

B. Effects and Motivations Govern CAT Application.....................108

C. Disciplinary Solitary Confinement is Torture.......................109

D. Despite This Determination, Solitary Confinement Remains Common. 109

III. The CAT Applies to Non-Disciplinary Solitary Confinement..................112

A. Non-Disciplinary Solitary Confinement Causes Severe and Predictable Harm to Prisoners, Violating the CAT's Severity Standard.......................113

B. Non-Disciplinary Solitary Confinement Is within the CAT's Jurisdiction.........................................................117

C. Non-Disciplinary Solitary Confinement Meets the CAT's Intent Standard....................118

D. Most Non-Disciplinary Solitary Confinement Meets the CAT's Purpose Standard.....................119

E. Nearly All Current Uses of Non-Disciplinary Solitary Confinement Violate the CAT........................120

1. Pre-trial solitar)7 confinement is torture under the CAT.120

2. Administrative segregation, though widespread, rises to the level of torture....................122

3. Protective custody as currently practiced is torture, even when requested by prisoners..................124

4. Short-term non-disciplinary solitary confinement causes harm severe enough to constitute torture................. 128

F. Article 16 of the CAT Likely Prohibits Any Practices to which Article 1 Does Not Apply...............129

IV. Implementation and Policy Considerations...............131

A. American Actions during the War on Terror Show the Limits of the CAT's Effectiveness...............131

1. Operational noncompliance has limited effectiveness in the wake of the War on Terror................133

2. Retaliatory breach is undesirable on the issue of torture..........134

B. Effective Prison Management Is Possible without Non-Disciplinary Solitary Confinement........................135

1. Financial considerations favor elimination of the practice.......136

2. Corrections systems do not require pre-trial isolation........137

3. Alternative prisoner management techniques eliminate the need for solitary confinement in almost all instances...................138

C. International Bodies' Ability to Ensure Compliance..................140

V. Conclusion........................................142

I. Introduction

Solitary confinement is a widely used practice in prisons around the world. It isolates prisoners from contact with other prisoners, the outside world, and prison staff in an attempt to control and manage prison populations. In practice, prisoners field in solitary confinement are usually field alone in cells for at least twenty-two hours per day. They have little access to light, short outdoor exercise periods (if they are allowed to exercise at all), and limited or no personal privileges, such as access to mail, books, or television.1 Prisoners in solitary confinement might only encounter other people when moved through the prison by guards and during short, irregular visits through windows or openings in their cell doors with mental health professionals.2 This Comment focuses on non-disciplinary solitary confinement, which includes any use of solitary confinement in prisons, jails, or other correctional facilities for any purposes other than discipline. Common types of non-disciplinary solitary confinement include protective custody, pre-trial isolation, and administrative segregation.

Although the different types of solitary confinement have some unique features, they are all subject to the same provisions of international law. The U.N. has condemned torture for almost its entire existence as an international body. …

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